? ? ? In The First Degree

It’s hard enough to communicate when many believe with the utmost sincerity that words mean whatever they feel they mean, dictionaries be damned. But then, the right to individual pronouns is just the beginning of communication insanity. It’s damn near illuminating compared to the bottom of the communication pit, emojis.

And yet, we’ve reached the point where prosecution for threat by emoji is now seen as a viable, indeed, necessary course.

The smiley face, heart, praying hands and other “emoji” have become the way millions of Internet users playfully punctuate their texts, posts and messages, but for one middle schooler the icons brought the police to her door.

The 12-year-old from Fairfax, Va., has been charged with threatening her school after police said she posted a message on Instagram in December laden with gun, bomb and knife emojis. It read in part:

Killing ?

“meet me in the library Tuesday”

? ? ?

What does this mean? Does this mean anything? Is it a true threat or the immature expressions of a child? Is it worthy of concern? Is it worthy of prosecution? These are no longer silly or existential questions.

A grand jury in New York City recently had to decide whether ? ? represented a true threat to police officers. A Michigan judge was asked to interpret the meaning of a face with a tongue sticking out: :P. Emoji even took a turn in the Supreme Court last year in a high-profile case over what constitutes a threat.

That emojis are being taken seriously as speech is hardly surprising. People use them. Lots of people, and apparently they serve to communicate something, even if they appear to an old lawyer to be meaningless.

Such thorny questions are likely to only increase with the recent announcement that Facebook was rolling out a series of five face emoji users can select to react to posts in lieu of its ubiquitous “like” button.

Is a winkie face emoji ironic, flirtatious or menacing? What exactly do the popular dancing girl or grinning pile of poo emoji actually mean — if anything — when appended to a message? Emoji have no set definition and their use can vary from user-to-user and context-to-context.

Much as words like “rape” are used untethered to any viable definition, tolerance for meaninglessness has become sadly normal. Words once meant what their definition would dictate. They then came to mean whatever their user decided they meant, Humpty-Dumpty-like.

But we’re now at the point where words mean whatever the recipient of communications feels they mean. A word offered in thought becomes a microaggression in reception. Benign curiosity is taken as an offense, and treated as such. The speaker who intended no harm is now subject to penalties, whether by social castigation or adjudication for violation of rules prohibiting anything that hurts the feelings of the most delicate listener.

Emojis, then, reduce this problem to a new depth of incomprehensibility.

A strange scene played out at the federal trial of the man accused of running the online drug market, Silk Road, last year in New York City. As a prosecutor began reading an Internet post to the court, Ross W. Ulbricht’s attorney raised an objection.

Ulbricht’s attorney said the prosecutor had omitted mention of a smiley face emoji that punctuated and imparted meaning to a sentence. Afterward, the judge instructed the jury to take note of the emoji in the posts, saying they were part of the evidence.

It was one thing when emojis were limited to smiley or winky faces. While they may defy any precise definition, we at least have a sense that they impart a tone or suggestion to the communication. But as new emojis come online daily, as their use may be meant to impart something, but no one can say with any assurance what, the likelihood of their having any clear evidentiary value is diminished.

Will there be emoji experts called to explain their meaning to a jury? Will it be left to each juror’s understanding, if any, what a particular emoji means? Can there be any level of assurance as to the accuracy of either, given that there is no American Dictionary of the Emoji. And even if there was, are 12-year-olds held to whatever definition this non-existent dictionary would provide?

And yet, prosecutions are happening. People are being held to account for criminal conduct based upon what their emojis suggest to police, to judges and jurors. Is this a new sub-niche for criminal lawyers? Will law schools teach “Law and Emojis”? As long as people continue to use emojis as a means of communicating . . . something, they will find their way into the courtroom.

And until rules are crafted to address this dive into meaninglessness, they threaten to destroy lives based upon nothing more than some inexplicable sense that they must mean something, even if no one quite knows what.

Well, courts are using Urban Dictionary these days to help translate slang. Maybe we need an equivalent for emojis to aggregate common meanings imparted to them. I’m not sure how much better we can do, unless we can somehow capture the state of mind of the sender at the exact moment he was sending the emoji.

I use the urban dictionary all the time, since young people use words with which I’m wholly unfamiliar. I find it’s a coin toss whether it’s right, and sometimes it horribly wrong. It’s not really a model for why people should be prosecuted or convicted. And emojis will be worse.

This will surprise you not at all. I had no idea what emojis (I hope this is the plural) were until fairly recently. That got me thinking.

I wonder if I could write an opinion using them. I bet I could. For example, after considering some lame ass claim that the cops beat the hell out of some gangbanger to get an admission, I might write the following:

It is ordered that the defendant’s motion to suppress his inculpatory statement is <0. [no link per rule]

Fortunately or otherwise, one issue in the nascent field of emoji law, perfect for the officing at Starbucks set, was settled by the technologists without any say from the lawyers.

Emoji are code points, not pictures. Every modern phone will recognize that a code point has been sent to it, but then it will display the depiction of the code point by the phone’s maker. Thus, at least in the days of yore, an emoji sent from an Android phone to an iPhetish might display differently on the iPhetish than on the Android.

Being the master CDL that you are, you can see readily how this might create havoc with the mens rea requirement for an emoji crime. Did the sender know that the poo emoji might display differently on an iPhetish than on an Android? Is mens rea to be judged based o what the sender thought was being transmitted, or on what the recipient received.?

Fortunately (or otherwise) our Google overlords solved that problem. The code points are now cross-platform standardized, so poo is poo regardless of your choice of tool.

This is all the culmination of a ridiculously patient Egyptologist union plot, which years ago first introduced the modern equivalent of hieroglyphs to an unsuspecting and malleable public to worm their way into the high profit world of litigation expert work.

Scott H. Greenfield

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